P/0037/92

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Rampersad

Grievor

• and -

The Crown in Right of Ontario (Workers Compensation Board)

Employer

BEFORE

J. A. Willes N. Agarwal

Panel Chair Member

FOR THE GRIEVOR

Rampersad

FOR THE EMPLOYER

P. Pasieka Counsel Filion, Wakely & Thorup Barristers & Solicitors

HEARING

Mary 5, 1993.

Decision

The Grievor, Leslie S. Rampersad, was a management employee employed by the Workers’ Compensation Board until his termination by that Board, effective January 5, 1993. On January 11, 1993, the Grievor submitted a grievance dated January 11, 1993, to the Public Service Grievance Board alleging wrongful dismissal, which reads in part:

“Re: NOTICE OF APPLICATION FOR A HEARING OF GRIEVANCE.

I am an ex-employee (management) of the Workers Compensation Board effective 05 January 1993. I believe that I was wrongfully dismissed and as such I am applying to the Public Service Grievance Board for a hearing on wrongful dismissal under the Public Service Act and Regulation 881.

Your prompt attention will be gratefully appreciated.

Sincerely Yours.

Leslie S. Rampersad.”

A hearing was scheduled for May 5, 1993, at which time Counsel for the Employer raised a preliminary objection with respect to the jurisdiction of the Public Service Grievance Board to hear the grievance.

Counsel for the Employer submitted that the Workers' Compensation Board was the employer of the Grievor and that the Public Service Act, R.S.O. 1990, c. P-47 as amended and the Regulations pertaining thereto do not apply to the Workers’ Compensation Board.

Counsel cited the following provisions of the Act and Regulations:

S1 “Civil Servant" means a person appointed to the service of the Crown by the Lieutenant Governor Counsel on a certificate of the Commission whereby the Commission and “civil service” has a corresponding meaning.

“Commission” means the Civil Service Commission.

“Crown employee” means a person employed in the service of the Crown or any agency of the Crown, but does not include an employee of Ontario Hydro or the Ontario Northland Transportation Commission.

"Public servant” means a person appointed under this Act to the service of the Crown by the Lieutenant Governor in Counsel, by the Commission or by a Minister, and “public service” has a corresponding meaning.

Regulation 977

S.13 (4) Where, in the opinion of a Deputy Minister, there may exist cause for removal of a public servant from employment or for dismissal of a public servant from employment, the Deputy Minister shall appoint a time for and hold a hearing.

(12) Where, after holding a hearing and considering the evidence produced or given in submissions or arguments presented or given in submissions or arguments presented at the hearing or, where the hearing is held by a delegate, after considering the report of the delegate, a Deputy Minister is of the opinion that there exists cause for removal from employment or for dismissal from employment of a public servant whose conduct was subject of the hearing, the Deputy Minister may remove or dismiss the public servant from employment.

(13) Where a Deputy Minister dismisses a public servant from employment for cause, the Deputy Minister shall,

(a) deliver to the public servant a notice of the dismissal setting forth the reasons therefore and advising him or her of his or her right to a hearing by the Public Service Grievance Board; and

(b) send a notice of the dismissal to the Commission and Provincial Auditor

S30 "Dismiss" means to dismiss a person from employment for cause under subsection 22(3) of the Act and "dismissal" has a corresponding meaning.

"Grievance" means a complaint made in writing setting forth the reasons for the complaint in respect of dismissal, working conditions, or terms of employment.

S36(1) Section 36 to 42 apply to persons who are employed in the Public Service under the jurisdiction of a Deputy Minister and who have been so employed continuously for at least a proceeding 12 months.

S37 A person who has received a notice under subsection 13(13) and who believes he or she is being dismissed unjustly may, within 21 days of the receipt of the notice, apply to the Board for a hearing by delivering to the Chair of the Board an application for hearing including his or her grievance.

Counsel for the Employer also submitted that the Grievor was hired by the Chairman of the Workers' Compensation Board and not appointed to the public service of the Crown by the Lieutenant Governor-in-Council, the Civil Service Commission, or by a Minister. His position was that the Grievor was hired pursuant to s. 66 of the Workers' Compensation Board which provides:

66(1) In accordance with personal policies approved from time to time by the Board of Directors of the Board, the Chair, subject to guidelines as may be established by the management Board of Cabinet and subject to the Crown Employees Collective Bargaining Act, may establish job classifications, personal qualifications and ranges for remuneration and benefits for consultants, actuaries, accountants, experts, officers and employees of the Board, and the Chair may appoint, promote and employ the same in conformity with the classifications, qualifications and ranges for remuneration and benefits established by the Chair.

According to her argument, the Grievor was an employee of the Workers' Compensation Board, hired by the Chairman of the Board, and not under the authority of a Deputy Minister. Counsel further argued that the Workers' Compensation Board was a Schedule III agency, which according to the Manual of Administrative Directive does not appoint staff under the Public Service Act. Her position was that the Grievor was not a public servant and not a civil servant as defined in the Public Service Act, which precludes this Board from hearing the grievance.

In support of this contention, counsel for the Employer referred to P/0006/87 Pelissero and The Crown in Right of Ontario (GO Transit), P/0003/86 and Nearingburg and The Crown in Right of Ontario (Ministry of Tourism and Recreation), P/0001/91 Dileo and The Crown in Right of Ontario (Metropolitan Toronto Convention Centre), Canadian Union of Public Employees and The Crown in Right of Ontario (Workmen's Compensation Board of Ontario) et al. Dec. 31, 1973. P.S.L.R. Tribunal (Little).

The Grievor submitted that the Workers' Compensation Board is a Crown agency and acts as a Crown employer. His position was that his only recourse was to the Public Service Grievance Board as he was not a union member.

This Board has carefully reviewed the arguments and the submissions of the parties, and from the submissions we would conclude that while the Workers' Compensation Board is a Crown Agency, and its employees Crown employees, the jurisdiction of the Public Service Grievance Board is determined by the provisions of the Public Service Act and the Regulations pertaining thereto.

According to s. 37 of Regulation 977, a person may grieve his or her notice of dismissal if he or she falls within S.36(1), which establishes the jurisdiction of this Board. s. 36(1) limits the right to grieve to this Board to “persons who are employed in the public service under the jurisdiction of a Deputy Minister…” A person employed in 'the public service under the jurisdiction of a Deputy Minister must, of course, meet the definition of a person employed in the public service to which the Public Service Act applies.

According to the submission of Counsel for the Employer, the Grievor was hired by the Chair of the Workers' Compensation Board, and not by a Deputy Minister, as the Board is a Schedule III Crown Agency that does not appoint pursuant to the Public Service Act. It would also appear that the Grievor was not employed under the jurisdiction of a Deputy Minister, but under the jurisdiction of the Board of Directors of the Workers' Compensation Board.

On the basis that the Grievor was not employed in the public service under the jurisdiction of a Deputy Minister, and does not fall within the provisions of s. 36 of Regulation 977 under the Public Service Act, this Board must conclude that it does not have jurisdiction to hear the grievance.

The Grievor has submitted that the Public Service Grievance Board is the proper forum to hear the grievance because he is not an union member and cannot take his grievance to any other forum. As the Board noted in the Dileo and Pelissero cases, the absence of a forum which would enable the Grievor to be re-instated in his employment does not confer upon this Board the jurisdiction to hear his grievance. The jurisdiction of the Board is set out in the Public Service Act and the Regulations, and the Board's authority to hear grievances is limited to those grievors that bring themselves within its provisions. As the Grievor is unable to establish that he is a public servant employed under the jurisdiction of a Deputy Minister, this Board lacks the jurisdiction to hear his grievance. The grievance is therefore dismissed.

DATED AT TORONTO THIS 8th DAY OF OCTOBER, 1993.